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Airport Searches: A Concern Whose Time Has Passed?
Alan Balfour, J.D., Ph.D., is the Chair of Management Department and Professor in the College of Business at the University of South Florida, Tampa, FL.

During the recent Thanksgiving season, a national furor arose over the Transportation Security Administration’s (TSA) airport security measures requiring extensive pat-downs or X-ray scans of passengers. Some of the public were outraged, calling the new procedures “a choice between a nude photo or being groped”1 or a “virtual strip search.”2 Protests were organized. Videos of uncooperative passengers went viral. (See related article on how this furor could have been minimized.)

The initial outrage and attention have largely worn off. At least, the media and the bloggers are far less obsessed with the topic. However, several interesting legal, as opposed to social, issues were presented and remain to be resolved. They derive from the Fourth Amendment’s protection against unreasonable searches and seizures by the government. The Fourth Amendment presents two basic requirements: 1) that all searches have probable cause; and, 2) that the search be as minimally intrusive as possible. The Fourth Amendment also generally requires the issuance of a search warrant supported by probable cause to justify a search. This requirement is waived in airports by a “special needs exception” for administrative searches that are not part of normal law enforcement and for which the warrant requirement is not practical.3 While the probable cause requirement has largely been averted, it is reasonable to infer and demand that the search be necessary.

How the System Works

By now, many readers have become at least somewhat familiar with the search process, either from publicity or experience. The new technology, called a backscatter, performs similarly to an X-ray. It was introduced to detect plastic and chemicals, not just metal. An officer located in a separate room views a scanner which creates a three-dimensional, full-body, nude picture of each passenger. Critics have called this a “porno scan.”4 The face of the traveler is blurred and the passenger is not recognizable. Images are not permitted to be stored. The examining officer never sees the passenger. Passengers refusing to submit to the backscatter scan must, instead, submit to the TSA pat-down “which leaves no area of the body unexplored”.5 A sizeable number of travelers find both alternatives objectionable. The legal question is whether this form of search meets the Fourth Amendment tests stated above.

Reasons to Argue the Process Violates the Fourth Amendment

Beyond embarrassment and irritation, there are three alleged reasons to challenge the validity of searches: 1) the process is arguably unnecessary, period; 2) it does not utilize the least invasive technology; and, 3) it presents a health danger from radiation.

At one level, at least some travelers believe the scanners are just a big show – in more ways than one. According to Joseph Schwieterman, a Chicago-based transportation expert, “I think Americans, in their hearts, still feel airport security is just…form over substance.…So they are impatient with strategies they feel are just there to placate political demands rather than genuine security threats.”6 It is difficult to determine how widespread this cynicism is, but to the extent that it is valid, it could negate the government’s Fourth Amendment authority to conduct a search. It would not meet the test of “necessary”. This issue seems unlikely to be resolved soon, or even to be contested through the legal process, but it does provide an interesting intellectual challenge.

The second challenge – that the search be minimally invasive – is more demanding. Technology is always in flux. It is always advancing. It is also, in this instance, relatively expensive. How often and how quickly must it be updated? How are alternatives identified for the purpose of determining the least invasive means possible? One newspaper commentator alleged that the American system is inferior to the Dutch system which is said to accomplish its purpose “ without revealing the Full Monty, as it were.”7 To the extent this allegation is valid (or that of any not yet identified alternative), the government’s authority could be challenged in court. Perhaps it will be.

Lastly, some critics challenge the searches as health hazards due to the use of radiation. The legal question presented is whether the need to search and the process used outweigh the health risks. There are two factors in this equation: 1) how necessary and effective are the search methods; and, 2) to how much danger do they expose passengers? The issues of necessity and effect are addressed elsewhere in this article. The extent of the health danger will be examined below.

Reasons to Argue the Process Does Not Violate the Fourth Amendment

Reasons to permit scanning and pat-downs include: 1) genuine necessity; 2) a lack of real harm; 3) minimal invasiveness compared to other systems; and 4) it is not really dangerous at all.

Few passengers doubt the need to defend airplanes from terrorists flying on them. Clearly, no way exists to determine whether a passenger is a terrorist merely by looking at him or her. Trying to do so by appearance is unreliable and would border on politically incorrect and illegal, profiling. It is really hard to argue that safety can effectively be guaranteed without physically inspecting everything that is carried on board. Scans and pat-downs in some form are quite clearly necessary and legal.

Whether they are minimally invasive is much more arguable. This consideration is a matter of degree, usually determined by comparison to alternative measures. By some of those comparisons, the TSA’s procedures certainly meet this test. In Israel, passengers are questioned extensively and face multiple inspections. Subgroups are targeted more intensely if they are thought to present a heightened threat. The Israeli security is both highly intrusive and highly effective. It has been rewarded with an excellent record of avoiding terrorism on its flights. Americans certainly desire the effectiveness outcome. In comparison to Israeli procedures, American pat-downs and scanners are, at worst, socially awkward. They are neither dangerous nor painful and are easily accomplished effectively if passengers cooperate willingly.

Lastly, evidence suggests that exposure to the amount of radiation from scanners is of absolutely no consequence. According to one source, it would take 5,000 trips through the scanner to equal a conventional chest X-ray. It was further asserted that fliers are exposed to cosmic radiation during their flights that is many times the level of exposure from scanners.8

Conclusions

Because of unfamiliarity, many new experiences in life seem worse that the passage of time reveals them truly to be. It appears that the TSA’s security provisions belong in this category. While socially awkward, they are not physically harmful. As passengers become more accustomed to the process they are less inclined to complain, particularly in a coordinated fashion with others.

Future legal challenges will clearly be based less on emotional issues and more on the technology used. While the probable cause requirement has been averted by the administrative exception rule and the necessity issue seems easily resolved, it is reasonable to infer that future legal issues will focus on whether the technology used is the least invasive possible. Suits of this type can be expected in the future. Some may prevail, creating a mandate for TSA to seek improved, less invasive technology. With an economic incentive to capture a business possibly worth more than $100 million, it is certain entreprenuers are, at this moment, working on methods to alleviate these problems. In time, they surely will. As these improved technologies are developed and implemented, it is likely searches will no longer be a legal issue.

Up

1  Shut Up and Be Scanned, LOS ANGELES TIMES, Editorial, November 17, 2010. (Last accessed on January 15, 2011: http://articles.latimes.com/2010/nov/17/opinion/la-ed-security-20101117).
2  Michael Farm, Airport body scans, pat-downs draw more complaints, ABC NEWS, November 17, 2010. (Last accessed on January 15, 2011: http://abcnews.go.com/Travel/wireStory?id=12166532).
3  Adam Freedman, Are the New Airport Searches Unconstitutional?, LEGAL LAD: QUICK AND DIRTY TIPS, Episode 128, December 6, 2010. (Last accessed on January 15, 2011: http://legallad.quickanddirtytips.com/are-the-new-airport-searches-unconstitutional.aspx).
4  Shut Up and Be Scanned, LOS ANGELES TIMES, Editorial, November 17, 2010. (Last accessed on January 15, 2011: http://articles.latimes.com/2010/nov/17/opinion/la-ed-security-20101117).
5  Ibid.
6  Michael Farm, Airport body scans, pat-downs draw more complaints, ABC NEWS, November 17, 2010. (Last accessed on January 15, 2011: http://abcnews.go.com/Travel/wireStory?id=12166532).
7  Adam Freedman, Are the New Airport Searches Unconstitutional?, LEGAL LAD: QUICK AND DIRTY TIPS, Episode 128, December 6, 2010. (Last accessed on January 15, 2011: http://legallad.quickanddirtytips.com/are-the-new-airport-searches-unconstitutional.aspx).
8  Shut Up and Be Scanned, LOS ANGELES TIMES, Editorial, November 17, 2010. (Last accessed on January 15, 2011: http://articles.latimes.com/2010/nov/17/opinion/la-ed-security-20101117).